Progressive originalism? Conservative pragmatism?
The theory and practice of politics
In oral arguments before the Supreme Court on February 8, counsel for Colorado—whose job was to defend the state’s tossing of Donald Trump off the ballot there—parried assertions that letting states determine who should be on the ballot in elections risked disenfranchising large numbers of voters, namely those who would have voted for the barred candidate. Only the voters of that state, the Colorado counsel replied. Colorado’s decision affected Colorado voters only.
This was a striking statement. Colorado Democrats are the ones who want Trump disqualified, and Democrats of late have been loud in condemning Republican efforts around the country to make voting harder. Now Dems in the Centennial State were doing just that.
Chief Justice John Roberts skeptically said that letting Colorado boot Trump would tempt Republican states to retaliate by chucking Joe Biden off their ballots. This would be a “pretty daunting consequence,” Roberts said, with evil implications for democracy. Associate Justice Brett Kavanaugh made the democratic argument more directly. “What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?” Kavanaugh said.
These remarks were almost as striking as the statement by the Colorado counsel. Roberts and Kavanaugh have not been as outspoken in their embrace of originalism as Clarence Thomas, Neil Gorsuch and Amy Coney Barrett, but they’ve been happy to cite originalist arguments when convenient. And nothing could be more originalist than that the states should decide for themselves who gets on the ballot and how the states’ electors are chosen.
Section 2 of Article II of the Constitution is clear on the matter: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Such is the original language. And the original practice was for most states to choose electors by vote of the legislature, not the people. This was perfectly constitutional, and it still is.
But it’s not what most people would consider legitimate. By the 1830s, all the states but South Carolina had turned selection of presidential electors over to the people. (South Carolina held out against the democratic tide until Reconstruction.) The Constitution hadn’t changed, but people’s ideas of self-government had.
The reversal of positions on constitutional interpretation—Democrats for originalism, Republicans for pragmatism—affords a reminder not to take interpretive philosophies too seriously. Politics is for practical people, not for philosophers. Especially today, the Supreme Court is scarcely less political than the other branches of government.
It’s good to hear conservatives on the court arguing in favor of democracy. They should try it more often. And if progressives would stick to defending democracy, that would be even better.
Fact check: the case was originally brought by Republicans.
So even though Democrats (and independents) might want Mr. Trump off the ballot it was Republicans who brought the case.
And removing a candidate from a ballot does not disenfranchise voters. They still have the right to vote. It could be argued that it disenfranchises the candidate, but hopefully only due to Constitutional requirements.
Kavanaugh and Roberts thought too little of the people and the federal and state Constitutions, methinks. Our democracy is quite generous, but it should be not so generous to allow insurrectionists on the ballot. Yes, I think the language of the 14th should be expanded to include all insurrectionists and not just oath takers.
Although I get your point on pragmatism. It has to be questioned how pragmatic it is to allow someone to run who will create chaos if they lose. It's one thing that you once allowed an adult to enter your house who made a mess. It's another thing to allow that adult to enter your house again when you have legal means to keep him out of your house. FWIW, the house is our Republic.
A candidate not getting on the ballot or not allowed on the ballot is NOT disenfranchising voters- they still get to vote- just not for that person. Candidates are kept off ballots all the time such as when they don't gather enough valid signatures on petitions or if they lose in a primary election they don't get on the ballot in November.
But to the issue of "originalism" - it's a b.s made up doctrine just like the "independent state legislature theory" or "textualism" or the newest one, "historicism" - all doctrines INVENTED by conservative think tanks as legal cover for politically deciding cases.
That said, even as I abhor Trump, I too am skeptical of states doing this. Aside from playing word games as to who is an "officer" on trump's side of the argument, the insurrection clause was not well written.
Section 3 Disqualification from Holding Office
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
It says no person who engaged in insurrection can run, but has no mechanism as to how to prevent that but has mechanism to lift the ban with the 2/3 vote. It seems to be written for that specific time. It would seem that if the writers expected future insurrections they would have included enforcement or activation text in the amendment.